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Schengen approaches the final frontier

Just three weeks before the Amsterdam Treaty enters into force, big question marks remain over the future of the free-movement accord. Simon Coss reports

European Voice

4/7/99, 5:00 PM CET

Updated 4/12/14, 4:30 AM CET

THE 28TH of April 1999 should go down in EU history as the day an ambitious experiment to dismantle Europe’s internal frontiers finally reached a successful conclusion.

However, it is more likely to be remembered as the moment when 15 European countries transferred a whole series of battles they had previously been fighting on intergovernmental turf to the gleaming new centre of the post-Amsterdam European Union.

The reason that the final Wednesday of this month will have such significance is that it is the date scheduled for the last-ever meeting of the Schengen executive committee – the ministerial body which sets the policy agenda for the Schengen free-movement zone.

Just two days later, on 1 May, the Amsterdam Treaty will enter into force and Schengen, currently an intergovernmental agreement wholly outside the Union’s legal structure, will be painlessly absorbed into the warm bosom of EU law.

At least that is the idea. But as is so often the case in EU politics, there is a catch.

Despite the fact that Schengen is supposed to be moved lock, stock and barrel into the EU treaties in a little under one month’s time, Union governments are still not entirely sure what the free-movement agreement obliges them to do or how the various different sections of the deal will be slotted into mainstream EU legislation.

At a meeting in Brussels earlier this month, justice and home affairs ministers tried to resolve these two key problems and singularly failed to do so. They instead chose to pass the ball on to the Union’s foreign ministers, who will now have the unenviable task of attempting to get agreement on the outstanding issues at their meeting in Luxembourg on 27 April, a mere three days before Amsterdam enters into force.

At the heart of the current confusion is the ‘Schengen acquis’ – a mixed bag of conventions, intergovernmental agreements, protocols and accession deals which together provide the legal basis for the free-movement zone.

In recent months, it has become painfully obvious that the EU’s 15 governments have widely differing ideas about what the acquis actually contains.

As if this were not difficult enough, matters are further complicated by the fact that not all EU member states are full signatories to the disputed Schengen pacts.

At one end of the spectrum are the UK and Ireland, which have not yet signed up to any parts of the accord, although they recently signalled their intention to join in some aspects of its work. Even though they remain outside the zone, they will nonetheless play a key role in any resolution of the current conundrum.

In accordance with the rules laid down in what was a typical EU compromise, London and Dublin have no say in the current debate over the content of the Schengen accord but they do have the right to veto any decision on where in the EU treaties the acquis is finally inserted.

Next come those member states which have signed up to Schengen, but are not yet full members. In this category are Greece, Sweden, Denmark and Finland. Athens is desperate to become a full Schengen participant, but has found its advances repeatedly rejected on the grounds that it is unable to patrol its thousands of kilometres of island coastline adequately.

The Scandinavian countries pose a different problem. They have a customs union with non-EU countries Norway and Iceland which they are not prepared to terminate. This has led to heated discussions in the Council of Ministers over the principle of extending the Union’s external frontiers beyond the borders of its member states.

Finally, at the heart of the whole tangled mess is the ‘inner core’ of nine full Schengen members: Austria, Belgium, France, Germany, Italy, Luxembourg, the Netherlands, Portugal and Spain.

These countries have pledged to remove all internal air, land and sea border controls between their respective territories and to ensure their police forces cooperate fully when, for example, pursuing criminals across frontiers.

But even here, things are not as straightforward as they might seem. While the nine have all promised to pull down their mutual borders, in reality some checks remain in place.

France has maintained controls on its northern borders since Schengen entered into force in March 1995 because it disapproves of the Netherlands’ laissez-faire drugs policy. Paris has also been reluctant to end routine searches at its frontier with Italy since Rome became a full member of the pact last year.

This state of affairs suggests that even if a commonly agreed definition of the Schengen acquis can be found before the end of this month, true free movement within the EU is still some way off.

Then, of course, there is the question of how the Schengen deal should be incorporated into the Amsterdam Treaty.

On the one hand there are those member states – notably the UK and Ireland – which say the entire agreement belongs in the EU’s ‘third pillar’ where legislation is hammered out on a purely intergovernmental basis. On the other are those who argue that those sections of Schengen which cover asylum and immigration matters should be slotted into the Union’s normal ‘first pillar’ lawmaking structure where rules are proposed by the European Commission and approved, altered or rejected by the Council of Ministers and the European Parliament.

Supporters of the latter approach argue that as Amsterdam will transfer all the EU’s internal rules on asylum and immigration from the third to the first pillar anyway, it is only logical that the Schengen agreement should be incorporated into Union law in the same way.

But any decision effectively to split the Schengen acquis between the two sections of the treaty must, as with all agreements in the justice and home affairs field, be unanimously approved by all 15 EU governments.

If member states are unable to reach a deal, the whole accord will pass by default into the intergovernmental third pillar. This, according to most observers, would make it hard to spot the difference between ‘pre’ and ‘post’ Amsterdam Schengen.

The imminent relocation of parts of the EU treaty from the third to the first pillar is also causing headaches for the Union’s justice and home affairs ministers in other areas. Aside from EU rules on asylum and immigration, Amsterdam will also see all legislation concerning cooperation in matters of civil law coming under the Union’s mainstream lawmaking procedures.

This has particular implications for two intergovernmental deals which have been agreed by justice ministers but still remain to be ratified by national parliaments: one on cooperation in divorce cases and the other covering the exchange of documents between courts.

The Commission argues that the two agreements should be abandoned and replaced with new legislative proposals which, after Amsterdam enters into force, would not have to go through a lengthy ratification process.

But many EU governments do not agree. They say this would amount to throwing years of hard work down the drain and could well lead to further protracted negotiations on the new proposals.

Of course they could simply agree to reach the same conclusions as they did when these issues were first discussed – but that would be just a little too easy.

Key dates on road to Amsterdam

June 1997 Agreement on terms of new treaty reached after an acrimonious summit

2 October 1997 Treaty signed in Amsterdam

7 May 1998 Germany is first country to ratify*

15 May 1998 Sweden ratifies

15 June 1998 UK ratifies

24 June 1998 Denmark ratifies

15 July 1998 Finland ratifies

21 July 1998 Austria ratifies

24 July 1998 Italy ratifies

30 July 1998 Ireland ratifies

4 September 1998 Luxembourg ratifies

31 December 1998 The Netherlands ratifies

5 January 1999 Spain ratifies

19 February 1999 Belgium ratifies

19 March 1999 Portugal ratifies

23 March 1999 Greece ratifies

30 March 1999 France is the last country to ratify

1 May 1999 Treaty enters into force

*Date corresponds to the day when the instrument of ratification was received by the Council of Ministers’ secretariat in Brussels